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have and receive all the town bonds which have been or may be authorized to be issued to either company in aid of the construction thereof, and the towns authorized to issue such bonds are hereby authorized and required to exchange the same for the stock or bonds of the railroad company that shall, under such agreement, construct a railroad upon the line designated therein, to an amount specified in the petition of the tax payers, or remaining unpaid on their subscription to the stock of either of said railroad companies. Nothing in this act contained shall be construed so as to compel the commissioners of any town that has assented to bond for railroad purposes for any specified line of railroad to surrender the bonds of any such town to any other railroad organization, until the assents of a majority of the tax payers, owning a majority of the property appearing upon the assessment roll of such town, has been first obtained. § 3. This act shall take effect immediately.

CHAP. 826.

AN ACT to repeal chapter six hundred and sixty-eight of the laws of eighteen hundred and seventy-one, entitled "An act to provide for the payment of counsel, required to be employed on behalf of the State, in pursuance of the provisions of section two of chapter three hundred and twenty-one of the laws of eighteen hundred and seventy.'

PASSED May 22, 1872; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. Chapter six hundred and sixty-eight, laws of eighteen hundred and seventy-one, entitled "An act to provide for the payment of counsel required to be employed on behalf of the State in pursuance of the provisions of section two of chapter three hundred and twenty-one of the laws of eighteen hundred and seventy," is hereby repealed.

§ 2. This act shall take effect immediately.

CHAP. 829.

AN ACT in relation to the formation of railroad companies.

PASSED May 22, 1872. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. Whenever any number of persons, not less than twenty-five, shall make and sign, or shall before the passage of this act have made and signed, articles of association, containing the statements required by section one of an act entitled "An act to authorize the formation of railroad corporations and to regulate the same," passed April second, eighteen hundred and fifty, except the names and places of residence of thirteen directors of the company as therein provided: and thereafter thirteen directors have been chosen at a meeting of subscribers to such articles, and the names and places of residence of such directors so chosen have been inserted in such articles so subscribed, and there has been indorsed thereon the affidavit prescribed by the second section of said act, and said articles have been filed and recorded in the office of the secretary of state; thereupon, the persons who have subscribed such articles, and all persons who shall thereafter become stockholders in such company shall be a corporation by the name specified in such articles of association, and have the same powers and privileges, and be subject to the same liabilities, as though such articles had when signed contained the names and places of residence of such directors.

§ 2. This act shall take effect immediately.

CHAP. 458.

AN ACT to provide for the formation of free public libraries.

PASSED May 1, 1872; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. Each town, and city and village in this State may, by resolution duly adopted by their common council, board of trustees and town auditors, respectively, establish and maintain a free public library therein, with or without branches, for the use of the inhabitants thereof, and provide suitable rooms therefor, under such regulations for its government as may, from time to time, be prescribed by the board of town auditors of the town, or the city counsel, or the board of trustees of the village: provided, nevertheless, when any village shall establish a library under this act it shall be exempt from any charge for the establishment or maintenance of any library in the town in which it is situated.

§ 2. Any town or city or village may appropriate money for suitable buildings or rooms, and for the foundation of such library a sum, not exceeding one dollar for each of its legal voters who voted at the next preceding annual election therein, in the year next preceding that in which such appropriation is made; and may also appropriate annually for the maintenance and increase thereof, or of any public library duly organized under the laws of this State in said town, city or village, a sum not exceeding fifty cents for each of its legal voters as aforesaid, in the year next preceding that in which such appropriation is made, and may receive, hold and manage any devise, bequest or donation for the establishment, increase or maintenance of a free public library within the same. The moneys herein authorized to be appropriated shall be audited, assessed, levied and collected as other town, village or city charges are now audited, assessed, levied and collected; provided, no such money shall be appropriated unless a majority of all the taxable inhabitants of said town, city or village where such library is to be lorated, petitioned to the board mentioned in the first section, in writing, for the establishment of such library. In obtaining signatures or consents to such petition for said library, reference shall be had only to the last preceding assessment roll of such town, city or village, and when the genuineness of such signatures to such petitions or consent, and the fact that said signatures constitute a majority of the tax payers as aforesaid shall be proven to the satisfaction of the judge of the county in which said library is to be located, the sufficiency of which proof shall be certified by such county judge, said petition or consent, together with said certificate of said county judge, shall be filed by the clerk of such town, city or village in the county clerk's office of the county in which such library is to be established.

§ 3. This act shall take effect immediately.

CHAP. 519.

AN ACT to repeal chapter two hundred and forty-five of the laws of eighteen hundred and seventy-one, entitled "An act relating to military exemptions." PASSED May 4, 1872; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. Chapter two hundred and forty-five of the laws of eighteen hundred and seventy-one, entitled "An act relating to military exemptions," is hereby repealed.

§ 2. This act shall take effect immediately.

The Albany Law Journal.

ALBANY, AUGUST 10, 1872.

LEX LOCI CONTRACTUS AND STATE
LIQUOR LAWS.

orders for liquor, knowing that, if purchased, they were to be sold by the purchaser in violation of the law, committed an indictable offense; that he was an aider or accessory to the offense of selling the liquors by Emerson; that the contract of sale, upon which Stewart claimed as a creditor of Emerson, grew out of and was connected with an immoral and an illegal act, and was, therefore, not to be protected or enforced by the court; and that Stewart, therefore, was not, as a creditor of Emerson, entitled to impeach the valid

It was held, by the court, Bellows, C. J., and Smith, J., dissenting, that the case was governed by the lex loci contractus, and the contract of sale from Stewart to Emerson enforceable in that forum.

The authorities bearing upon the question were carefully collated by Foster, J., who delivered the opinion of the court as follows, with the exception of some slight condensations, which we have been compelled for lack of space to make.

It is a general principle of the law that contracts valid by the law of the place where they are made are valid everywhere and will be enforced in the jurisdic-ity of the alleged sale by Emerson to the plaintiff. tion to which parties may be compelled to resort to enforce them. To this general rule, however, there is this important exception, that no nation or State is bound to recognize or enforce contracts which its government may deem injurious to its own interests or the welfare of its people or which are in fraud and violation of its own law. Such contracts are considered as nullities in every country affected by such considerations, although they may be valid by the place where they are made. Story on Conflict of Laws, § 244. The reason of this exception is, that since the authority of the acts and contracts made in other States is admitted beyond the State only from comity, and not of right, every State may judge for itself how far that comity ought to extend, and to limit it so that it shall not work prejudice to the State. One of the most difficult questions that our courts have to deal with is to determine precisely how far this comity ought to be extended, or, in other words, to what extent they will go in sustaining an exception that takes out of the general rule and invalidates a contract sought to be enforced before them, which, though entirely legal when made, is regarded in the jurisdiction of the former as contrary to morality or the provisions of local statutes.

A question of this character has recently come before the supreme judicial court of New Hampshire, and has elicited from that court a most elaborate and able opinion. The case is that of Hill v. Spear, and will be reported in the 50th volume of the reports of that State. That was an action of trover by Hill against Spear, a deputy sheriff, for attaching property on a writ in favor of Stewart against Emerson. Hill claimed to have purchased a part of the attached property from Emerson. The main question was, whether Stewart was a creditor of Emerson. Stewart lived in New York, and was a wholesale dealer in liquors, and Emerson kept a liquor saloon in New Hampshire. Stewart had frequently sold liquors to Emerson, which were retailed to his customers; had on several occasions visited Emerson's saloon, and, on one occasion, solicited orders for liquors. Shortly after this Emerson, by letter, ordered liquors from Stewart, which was delivered to a carrier in New York, directed to Emerson in New Hampshire, and received by him. The sale of liquor in New Hampshire is prohibited except by town agents, and the plaintiff insisted that Stewart, by coming into the State and there soliciting

"Judge Metcalf, in his work on Contracts, pages 260, 261, uses the following language: "As 'courts will not lend their aid to enforce a contract entered into with a view of carrying into effect any thing which is prohibited by law,' they will not allow a party who sells goods, knowing that the buyer is to use them in contravention of a statute, to recover the price. Thus, where an Englishman in Guernsey sold goods and assisted in packing them in a particular manner, for the purpose of their being smuggled into England, it was held that the seller could not recover pay for them. Biggs v. Lawrence, 3 T. R. 454. And the same doctrine was applied where the seller was a foreigner, who sued on a bill of exchange given for goods which he had assisted in smuggling into England. He could not resort to the laws of England, which he had assisted to evade. Clugas v. Penalula, 4 T. R. 466; Waymell v. Reed, 5 id. 599. Where an English merchant chartered a vessel of a merchant in New York, while the non-intercourse laws of the United States were in force, for the purpose of conveying a cargo from New York to Fayal, to be transported thence to England, it was held, that he could not maintain an action in this country for the hire of the vessel. Graves v. Delaplaine, 14 Johns. 146."

The learned author then cites, with apparent disapproval, the case of Holman v. Johnson, Cowp. 341, where the contract and delivery of goods were complete abroad, and the vendor, a foreigner, did not act to assist the smuggling of them; and he was held entitled to recover pay for them in England, though he knew that they were to be smuggled. "This case," he says, can be reconciled with the subsequent decisions only on the ground that a foreigner is not bound to guard the revenue laws of England, though he cannot actively assist in violating them." And he continues as follows: "Though Mansfield, C. J., `in Hodgson v. Temple, 5 Taunt. 181, said, 'the merely selling goods, knowing that the buyer will make an

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illegal use of them, is not sufficient to deprive the vendor of the price, etc., he should share in the illegal transaction;' yet that point was not necessarily involved in the decision; and in Lightfoot v. Tenant, 1 Bos. & Pul. 551, it was decided that a person selling goods in order that they might be exported to a place where, by statute, they could not be exported legally, could not recover, even on a bond given for the price of them." He also cites, in support of his position, Langton v. Hughes, 1 M. & S. 593, and Cannan v. Bryce, 3 B. & Ald. 179, in which Abbott, C. J., is reported as inquiring- "if it be unlawful for one man to pay (for settling losses on illegal stock-jobbing transactions), how can it be lawful for another to furnish him with the means of payment?" and various other cases which, he thinks, tend to the same result. He concludes that Lord Erskine, in Ex parte Bulmer, 13 Ves. 353, is at variance with the king's bench, in Ex parte Bell, 1 M. & S. 751, and that Lord Erskine's doctrine is not recognized as the law of England.

It is manifest that if Judge Metcalf's deductions from the cases cited by him are correct and sustain the view which he adopts, those cases are not in accordance with the view of the law entertained by the court in Smith v. Godfrey, 28 N. H. 384. We shall advert to some of these cases again presently.

And it is manifest that Judge Metcalf makes no distinction between a case of bare knowledge of illegal intention on the part of the vendee, and an active participation and assistance in the performance of the illegal intent; between the act of putting into the party's possession the means of doing an unlawful act, with the belief that such unlawful act will be done, and the furtherance of that unlawful act by actively aiding its accomplishment.

In Gaylord v. Soragen, 32 Vt. 110, the plaintiff, residing in New York, and being authorized to sell spirituous liquors there, sold some there to the defendant, who resided in Vermont, where the sale of such liquors was unlawful, the plaintiff, at the time of the sale, knowing that the defendant intended to sell them in Vermont contrary to law. The liquors were delivered in New York to a carrier designated by the defendant, to be transported to Vermont at the risk of the latter. But, at the defendant's request, and to prevent the seizure of the liquors in Vermont, the plaintiff marked the casks in a peculiar way, omitting the defendant's name.

In delivering the opinion of the court, Aldis, J., said, “Although mere knowledge of the unlawful intent of the vendee by the vendor will not bar him from enforcing his contract to recover for the goods in our courts, yet it is well settled that if he in any way aid the vendee in his unlawful design to violate our laws, such participation in the illegal enterprise will disqualify him from maintaining an action on his contract in this State. The participation by the vendor must be active to some extent; he must do something, though indirectly, in furtherance of the vendee's de

sign to violate our laws. Mere omission to act is not enough, but positive acts in aid of the unlawful purpose, however slight, are sufficient.

"The omission to mark the casks with the defendant's name, standing alone, would not, in our judgment, be an act of participation sufficient to bar the plaintiff. But the plaintiff went further; and the act done, though slight, is significant. He so marked them that the defendant might instantly know his casks on their arrival, and so be enabled to remove them before the officers of the State should have their suspicions awakened. This act, though so slight, gave the defendant an advantage over the officers, and aided him in escaping their vigilance. This was the object the plaintiff and the defendant intended to accomplish by having them so marked. We think the act done tended to secure their design. As the evidence tended to prove that the plaintiff, by his acts done in connection with the sale and delivery of the liquors, aided the defendant to escape the vigilance of the officers, and so to have and sell the liquors in violation of law, it should have been admitted."

The decision of this case, then, is put clearly upon the ground of an active participation by the plaintiff in the unlawful act of the vendee; passive knowledge of intention being regarded as wholly insufficient to affect the validity of the contract. Notwithstanding full knowledge of the unlawful intent of the vendee, there must be something else actively done by him. "Mere omission to act is not enough."

In Aiken v. Blaisdell, 41 Vt. 656, the evidence tended to show that, at the time of the sale of the liquors, the plaintiff was informed by the defendant of the existence of the prohibitory law of Vermont; and that the defendant was purchasing the liquor for the purpose of selling it in violation of the law; and that he could not have the liquor come all at once to him, or have it directed to him openly without risk of seizure; and that the plaintiff agreed to send the liquor to him in a disguised form, so as to avoid seizure; and, in pursuance of said agreement, he did so send it.

The court, Pierpont, C. J., expressly affirms the doctrine of Gaylord v. Soragen, that mere knowledge of the defendant's unlawful intent will not bar the plaintiff's right of action, but some active participation in the fraud will be required; and the decision of the case against the claim of the plaintiff is placed upon the ground that such act of the plaintiff is a positive participation in the defendant's guilt, and that it avoids the previous contract of sale; because it is not a separate transaction, disconnected from the original contract, but immediately and directly connected with it, being done in the act of carrying out and executing the contract, by forwarding and delivering the property as required by that contract. In this connection see Story on Contracts, § 625, and Territt v. Bartlett, 21 Vt. 184.

In M'Intyre v. Parks, 3 Metc. 207, it was held, that

a sale made in another State and valid by the law of that State, will not be held void in Massachusetts, from the bare fact of the knowledge or belief of the vendor, of the purchaser's intent to re-sell in Massachusetts in violation of law.

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In commenting upon this case, Thomas, J., in Webster v. Munger, 8 Gray, 587, expresses his disapprobation of the rule as there laid down: "In my judgment," he says, "it was not rightly decided ;' and he claims that if the rule be correct it should not be extended. "The case at bar," he says (Webster v. Munger, much relied upon by the plaintiff here), "does not fall within the rule. The distinction is sound between a case where a seller simply has knowledge of the illegal design - -no more- and where, having such knowledge, he makes a sale with a view to such design, and for the purpose of enabling the purchaser to effect it." "In the case before us," he continues," the plaintiff was a citizen of and residing in this commonwealth. The evidence shows his knowledge of the illegal business in which the defendant was engaged. One of the orders was taken by the plaintiff at the domicile of the defendant in this State. In one of the written orders, the illegal purpose for which the liquor was wanted, and the time when it would be wanted for that purpose, were indicated, and the plaintiff was urged not to fail in forwarding it for that end. It was on this posture of the evidence that the jury were instructed: '1st. That if the contract of sale was made in Hartford, where it was a legal transaction, the plaintiff could recover, unless for the reasons stated in the further instructions of the court, which were, 2d. That if the sales were made in Hartford, by the plaintiff to the defendant, with a knowledge on the part of the plaintiff that the liquors were to be re-sold in this commonwealth contrary to law, or if, when the plaintiff sold the liquors, he had reasonable cause to believe that they were to be re-sold by the defendant contrary to the laws of this commonwealth, and the sales were made by the plaintiff with a view to such re-sale, then, or in either of these cases, the plaintiff cannot maintain this action.' Under these instructions, to have found a verdict for the defendant, the jury must have been satisfied, not merely that the plaintiff had knowledge of the illegal purpose of the defendant, | but that he sold with reference to it, and for the purpose of enabling him to effect it. In this view, the instructions are thoroughly sound in principle, and do not conflict with the cases decided."

In Finch v. Mansfield, 97 Mass. 89, the order for the liquors, the price of which was the consideration of the promissory notes in suit, was solicited from the defendant, at his place of residence, by the plaintiff's agent, who was a citizen of Connecticut, as were also his principals. The order was transmitted by the agent to the plaintiffs in Connecticut, who filled it there, and forwarded the goods to the defendant in Massachusetts, who paid the freight, in pursuance of

his understanding with the agent. The price of the goods was agreed upon between the agent and the defendant at the time of the order. On a previous occasion the agent had, in like manner, solicited from the defendant and forwarded to the plaintiffs a like order, which was, in like manner, filled by them, and was paid by the defendant to the agent. It was held that the judge rightly refused to rule, on these facts, that the sale was made in Massachusetts, and submitted to the jury to determine the place of sale, with instructions that if the agent merely solicited from the defendant the order and forwarded it to the plaintiffs in Connecticut, who thereupon filled it and delivered the goods to a common carrier, directed to the defendant in Massachusetts, the sale was made in Connecticut.

The peculiar law of Massachusetts, applicable to the case, manifestly controlled the decision in this, as in the preceding case of Webster v. Munger.

The general statutes of Massachusetts (ch. 86, § 1) provide that "no action of any kind shall be had or maintained in any court, for the price of any liquor sold in any other State for the purpose of being brought into this commonwealth, to be here kept or sold in violation of law, under such circumstances that the vendor would have reasonable cause to believe that the purchaser entertained such illegal purpose." It was undoubtedly in view of this statute, and not of any independent principle of the common law, that Hoar, J., used this language: "The plaintiffs, who were traders in Connecticut, might lawfully sell the liquors there, unless they knew that they were intended to be used in violation of the laws of Massachusetts."

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But finally, this provision of the general statutes in Massachusetts was repealed; and thereupon the courts proceeded to expound again the doctrines of the common law upon this subject; and Colt, J., delivering the opinion of the court in Adams v. Coulliard, 102 Mass. 167, said: “The verdict of the jury, in this case, establishes the facts that the liquors, the price of which the plaintiff seeks to recover, were sold to the defendant in New York; and that the plaintiff had reasonable cause to believe, but had no knowledge, that they were to be brought into this State for the purpose of being sold here in violation of law.

"The action was commenced May 25, 1868. Under the general statutes (ch. 86, § 61), it could not have been maintained. The statute effects the remedy, and was repealed by the statute of 1868, chapter 141, before this suit was commenced. The cause of action still remained, and it arose out of a contract valid by the laws of the place where it was made. It is claimed, on the part of the defendant, that the contract originated in the purpose to violate a known law of this State; and that our courts will not lend their aid, and afford a remedy thereon, even after the repeal of such law. To do this, it is said, would violate an elementary principle of the common law.

The illegality of the contract must be determined by the law as it existed at the time the contract was entered into. If then illegal at the place where the contract is sought to be enforced, the rule applies.

fact that the contract of sale had no reference to or connection with the subsequent disposition of the goods; that mere knowledge of the unlawful intent does not make the vendor a participator in the guilt of the purchaser.

Such also is the principle recognized in Faikney v. Reynous, 4 Burr. 2069. Lord Mansfield, who delivered the opinion in this case also, says "the seller indeed knows what the buyer is going to do with the goods, but the interest of the vendor is totally at an end, and his contract complete by the delivery of the goods."

"It is not necessary, here, to consider whether the general rule has any modifications, when applied to contracts made out of the State, or to contracts made solely with reference to a violation of the revenue laws. In order to make the plaintiff, under any circumstances, a participant in such unlawful sale, at common law, it is necessary that he should, at least, have knowledge of the unlawful purpose. In some early cases it was held that mere knowledge of the unlawful purpose of the buyer, on the part of the seller, without further act, where the illegal use to be made of the goods was no inducement in the mind of the seller, would not vitiate the sale so as to deprive the seller of his remedy. Clearly, it is not enough, if he has only reasonable cause to believe that a violation of the law is in-plaintiff did some act in aid of and to facilitate the tended. The statute alone introduces this element, and upon its repeal the rule at common law only applies."

With much deference, I am constrained to say that the distinction suggested in the foregoing remarks between mere knowledge and mere reasonable cause of belief, seems to me thin and shadowy.

However this may be, the case of Adams v. Coulliard is precisely the case we are now considering, and is an express authority to the point that, at common law, and independent of statutory provisions, reasonable cause of belief, on the part of the seller of goods, that the purchaser buys for the purpose of carrying them into another State to be there re-sold in violation of law, does not invalidate the sale.

I propose now to revert to the cases already spoken of which are collected and commented upon by Judge Metcalf in his work on Contracts, 260, 261. The leading case in England is that of Holman v. Johnson, Cowp. 341, where the plaintiff, residing at Dunkirk, had sold the defendant a quantity of tea, knowing that the latter intended to smuggle it into England, but had himself no concern in the smuggling, and merely sold the tea to the defendant as he would have sold to any other person, in the ordinary course of trade. The action was brought for the price of the tea; and it was held that the plaintiff could recover. Lord Mansfield, in delivering the opinion of the court, used the following language: "Is there any law of England transgressed by a person making a complete sale of a parcel of goods at Dunkirk and giving credit for them? The contract is complete, and nothing is left to be done. The seller indeed knows what the buyer is going to do with the goods, but has no concern in the transaction itself. It is not a bargain to be paid in case the vendee should succeed in landing the goods, but the interest of the vendor is totally at an end, and his contract complete, by the delivery of the goods at Dunkirk."

The reasoning of this case rests entirely upon the

Biggs v. Lawrence, 3 T. R. 454; Clugas v. Penaluna, 4 id. 466; and Waymell v. Reed, 5 id. 599, were all cases in which the plaintiff sold the goods with knowledge that the purchaser intended to smuggle them; and in each case the plaintiff was nonsuited; but they all differed from Holman v. Johnson in this, that in each of these cases, in addition to knowledge of the purchaser's criminal intent, the

smuggling of the goods. Such additional act, in direct furtherance of the purchaser's guilty design, was held to make the plaintiff particeps criminis.

In Waymell v. Reed, Buller, J., says: "In Holman v. Johnson the seller did not assist the buyer in the smuggling. He merely sold the goods in the common and ordinary course of trade; but this case does not rest merely on the circumstances of the plaintiff's knowledge of the use intended to be made of the goods; for he actually assisted the defendant in the act of smuggling by packing the goods up in a manner most convenient for that purpose."

In Pellecat v. Angell, 2 Crompt. Mees & Ros. 311, the court held, that the plaintiff could recover the price of the goods, notwithstanding his knowledge, at the time of the sale, that the goods were intended to be smuggled into England. Lord Abinger said : "The distinction is, where he takes an actual part in the illegal adventure; as, in packing the goods in prohibited parcels or otherwise, there he must take the consequences of his own act." Again he says: "The plaintiff sold the goods; the defendant might smuggle them if he liked, or he might change his mind the next day; it does not at all import a contract of which the smuggling was an essential part."

In the same case Alderson, B., says: "If the plea disclosed circumstances from which it followed that, permitting the plaintiff to recover would be permitting him to receive the fruits of an illegal act, the argument for the defendant would be right; but that ground fails, because the mere sale to a party, although he may intend to commit an illegal act, is no breach of the law."

In Hodgson v. Temple, 5 Taunt. 181, the plaintiffs were distillers and sold the liquors to the defendants with full knowledge of their intention to retail them contrary to law. In an action to recover the price of the liquors, the defendants insisted that the plaintiffs' recovery was barred because they were particeps

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